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Show 132 THE RIPARIAN DOCTRINE thereto is discussed at some length in chapter 9. Under "Rotation in Use of Water-Imposition of Rotation Plan by Court Decree," there is a quotation from one of the California decisions that while the remedy of rotation and use of water for irrigation purposes in times of short supply "has been more generally applied as between riparian proprietors * * *, in principle there is no reason why it should not be made applicable as between claimants by appropriation."686 It apparently is more readily imposed as between riparians in view of the more equalitarian nature of their respective rights. (2) Most of the high court cases in which rotation questions as among riparian proprietors have been considered arose in California. These decisions are to the effect that riparian proprietors may adjust their rights as among themselves by providing for use of the streamflow by each party intermittently and alternately, one taking the exclusive use of the entire flow during the irrigation season for a certain number of days and the other following with a like use.687 As is the case with rotation among appropriators, the practice necessarily would be limited to situations in which the rights of other claimants to the use of the water are not infringed by the practice. The policy of imposing rotation upon the parties by court decree is approved by the courts of California in cases in which the claim of right to the entire flow or entire proportion of the flow of the water would be unreasonable under the circumstances, and in which the rights of the parties can be best preserved by allotting the entire flow at alternate periods.688 For example, an early trial court decree to the effect that each of the parties was entitled to the full flow of the water every 3Vl out of 7 days was approved by the supreme court.689 The principle of apportionment of water among riparians, when most desirable, was applied in an 1896 California Supreme Court case to use for domestic purposes as well as for irrigation.690 But in a case decided the next year, the court appears to have applied this principle only as among competing 686Huffordv.Dye, 162 Cal. 147, 160-161, 121 Pac. 400 (1912). ™Peake v. Harris, 48 Cal. App. 363, 378, 192 Pac. 310 (1920). See Lux v. Haggin, 69 Cal. 255,408409,4 Pac. 919 (1884), 10 Pac. 674 (1886). 68SCarlsbad Mut. Water Co. v. San Luis Rey Dev. Co., 78 Cal. App. (2d) 900, 911, 178 Pac. (2d) 844 (1947). "In this class of cases the decree of the court should be made to fit the stream that it applies to, and as a general rule when the stream is small the parties can best be served by giving them the alternate use of the entire stream." Gutierrez v. Wege, 145 Cal. 730, 735, 79 Pac. 449 (1905). See Smith v. Corbit, 116 Cal. 587, 592, 48 Pac. 725 (1897); Craig v. Crafton Water Co., 141 Cal. 178, 181-182, 74 Pac. 762 (1903). 689Harris v. Harrison, 93 Cal. 676, 680-682, 29 Pac. 325 (1892). Under circumstances of scarcity, the riparian owner would have no right as against the other riparian owners "to insist on the full flow of the stream over his land for the mere pleasure of looking at it as a feature of the landscape." Rose v. Mesmer, 142 Cal. 322, 329-330, 75 Pac. 905 (1904). 690 Wiggins v. Muscupiabe Land & Water Co., 113 Cal. 182, 190-193,45 Pac. 160 (1896). |
